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Publisher's Platform: FDA and the 'Mosaic Theory'

By Dan Flynn and Suzanna Schreck

In the quiet between Christmas and New Years, the FDA released an environmental assessment conducted in response to a multi-state foodborne disease outbreak involving 33 cases of E. coli O145 infections in five states in the spring of 2010. The CDC's epidemiologic investigation found that the illnesses were associated with the consumption of shredded romaine lettuce processed at one firm (Freshway) in Ohio. FDA's investigation at the processor did not identify a likely source of contamination at the firm (Freshway). However, the FDA conducted a traceback investigation from the processor (Freshway) that led to the farm (FDA does not name).
This Environmental Assessment by the FDA identified the mystery farm upon which the lettuce was grown as the most likely source of the contamination. The FDA did confirm that the suspect romaine lettuce was grown in four fields on a farm in Wellton, Arizona. The environmental assessment identified six potential sources of STEC in the Wellton, Arizona area; three Concentrated Animal Feeding Operations (CAFOs), one housing development with a co-located sewage treatment facility, one recreational vehicle (R.V.) park with multiple septic leach systems, and the seasonal grazing of sheep on harvested wheat and alfalfa fields.
Yet, the FDA refuses to name the farm. Why?  It is not like the FDA has not named farms in past outbreaks. Here are links to three CDC, FDA and the state of California investigations and tracebacks on past E. coli O157:H7 outbreaks:
2006 Dole Spinach - The CDC confirmed 205 persons with illness associated with Dole Spinach E. coli O157:H7 outbreak in California, Arizona, New York, Minnesota, Wisconsin, Oregon, Utah, Colorado, Washington, Michigan, Ohio, Pennsylvania, Virginia, Idaho, New Mexico, Connecticut, Illinois, Indiana, Kentucky, Maine, Nebraska, Nevada, Tennessee and Wyoming.
2006 Taco Bell Lettuce - The CDC confirmed 71 persons with illness associated with the Taco Bell restaurant E. coli O157:H7 outbreak in New Jersey, New York, Pennsylvania, Delaware, and South Carolina.  2007 Taco John's Lettuce - The CDC confirmed 81 persons with illness associated with the Taco John's restaurant E. coli O157:H7 outbreak in Iowa and Minnesota.
Interesting thing about those investigations is that the FDA, et. al, named all names - including the farms that grew the offending lettuce or spinach.  Why not now?
Here is the FDA's rationale for not disclosing the name of the farm:
"FDA has concluded that the supplier/customer relationship between the farm and the distributor is confidential commercial information (CCI). Utilizing the "mosaic effect" approach recognized by the courts, FDA must consider that the distributor has already been publicly identified in the lettuce recall. As a result, if FDA were to disclose the name of the source farm, it would necessarily reveal the supplier/customer business relationship between the farm and the distributor. CCI is exempt from FOIA's disclosure obligations under 5 U.S.C. 552(b)(4); and the Trade Secrets Act, 18 U.S.C. 1905, prohibits individual government employees from disclosing CCI "to any extent not authorized by law."
To be blunt, I do not fully understand this argument in the context of the disclosure of the farm in the Freshway outbreak. The FDA's explanation for non-disclosure of the farm is basically non-existent. In the general legal context, the "mosaic" theory is most often invoked in national security or defense type matters. This article explains it very well: "The Mosaic Theory."
"The theory is straightforward: seemingly insignificant information may become significant when combined with other information. Thousands of bits and pieces of seemingly innocuous information can be analyzed and fitted into place to reveal with startling clarity how the unseen whole must operate (Halkin v. Helms, 598 F.2d 1, 8, D.C. Cir. 1978)."
As I understand it, the distributor in the lettuce outbreak has been identified (Freshway), and if FDA named the farm, it would reveal that there is a business relationship between Freshway and the farm. FDA considers their business relationship to be "confidential commercial information" protected from disclosure under FOIA. I think this is because either the information Freshway provided to FDA to identify the source farm was designated confidential or FDA otherwise has reason to believe that disclosure of the farm could reasonably be expected to cause substantial competitive harm to the parties.
In other words, it appears FDA is more concerned with harming the farm and Freshway's bottom line, and less with transparency.  Well, so much for transparency.

Full post as published by Food Safety News on January 17, 2011 (boomark / email).